The Big Chill Update: U.S. District Court Judge holds Idaho “Ag-gag” law to be Unconstitutional

In a decision released on Monday, August 3, Idaho US District Court Judge B. Lynn Winmill[i] held that Idaho Code § 18-7042 was unconstitutional. Idaho Code § 18-7042 – the statute being challenged – created a new law criminalizing “interference with agricultural production.” This law and others like it are known as “ag-gag” laws, or laws that chill citizen enforcement, because they create criminal penalties for collecting data or other evidence of improper or illegal activities in private facilities, thereby deterring whistleblowers within certain industries. Any person who violated the law faced up to a year in prison and potential civil damages.

A person committed this crime if they knowingly:

are not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass; obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;

obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility’s operations…

Enters an agricultural production facility that is not open to the public and, without the facility owner’s express consent pursuant to judicial process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility’s operations;

or Intentionally causes physical damage or injury to the agricultural production facility’s operations, livestock, crops, personnel, equipment, buildings or premises.

Shortly after the law was enacted, The Animal Legal Defense Fund challenged Idaho Code § 18-7042 as unconstitutional. The complaint raised two substantive constitutional challenges against the State – violation of the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

Constitutional Analysis Breakdown

The Court goes through a three-step analysis to determine if the statute violates the First Amendment. First, it determines whether the statute criminalizes protected speech. Speech is protected, and may not be prohibited by a statute, when it does not cause a legally cognizable harm. Types of speech that may cause harm – and therefore not protected – are false speech and other misrepresentations that amount to actionable fraud, defamation, conversion, or trespass.

Here, the statute prohibited any misrepresentations used to gain access to property, records, or employment – regardless of whether the misrepresentations themselves cause any material harm. Accessing the animal facility by misrepresentation does not harm the facility, and harm that may be caused by the publication of a true story is not the type of direct material harm contemplated.

Secondly, the court determined the statute regulates content-based speech, which is speech specific to a certain message, idea, or subject matter. Content-based restrictions are subject to strict scrutiny by the court. The court states that the government’s purpose for enacting the law is the controlling consideration in determining content neutrality. Here, the legislative history clearly shows the law’s primary purpose is to suppress speech critical of animal-agriculture practices. The statute only targets speech concerning the “conduct of an agricultural production facility’s operations” while leaving unburdened other types of speech at these facilities. The statute is also viewpoint based because it allows facility owners to silence unfavorable speech. For these reasons the statute must survive the highest level of scrutiny.

Thirdly, the court determines that the statute does not survive strict scrutiny because it does not further a “compelling state interest.” To qualify as a compelling interest, there must be some pressing public necessity, or some essential value that has to be preserved. Idaho argued that the facility owner’s right to private property is a fundamental right. But the court disagrees because the public has an interest in food supply, worker safety, and the humane treatment of animals. Therefore, it would contravene strong First Amendment values to say the State has a compelling interest. Further even if the private property interest here was “compelling”, the statute is not narrowly tailored. Laws already exist to protect private property rights and defamation. Therefore, the law is overbroad and protects more speech than necessary.

The plaintiffs also succeed on Equal Protection grounds. Under traditional Equal Protection analysis, if the classification is rationally related to a legitimate government interest, a legislative classification must be sustained for a particular class of people – or in this case – business. The State fails to provide a legitimate explanation for why agricultural production facilities deserve more protection than other private businesses.

In reality, the statute is a bare congressional desire to harm politically unpopular groups. Further, the statute discriminates on its face and through its purpose. It discriminates on its face by classifying between whistleblowers in the agricultural industry and whistleblowers in other industries. It discriminates in its purpose because, as the legislative history shows, it was enacted by an improper animus toward animal welfare groups.

The ruling is a significant win for interest groups that seek to expose the mistreating of animals at agricultural facilities. States with similar ag-gag laws such as Montana, Utah, North Dakota, Missouri, Kansas, and Iowa may see their laws struck down as well after Judge Winmill’s opinion. Further, the opinion will be a building block for challenges to any statute – not just ones that apply to agricultural facilities – that intend to suppress unfavorable speech from interest groups against industry. Particularly, statutes like Wyoming’s data trespass law that guard industry from environmental law enforcement.

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